19761130 TZHC Dodoma

2 'V. '.N THE HIGHCOIJRT:,OFTANZANIA ATDODOMA VH ORIGINAL JURISDICTION. (DOD0MA REGITRY). V CRIMINAL SESSIONS CASE No. 159 OF 1973 'V THE REPUBLIC versu ANDREA JORORO FELIX. V 2. IDDI JTJNA CHARGE Murder c/s 196 of the Penal Coae Cap.16 J U D G II E N. T CHIPETA, AG. J.. The accused persoi in this case, Andrea Throro Felix, stands charged with t.Fè'offence of murder. :/ 196 of the Penal Code. It is alloged b3thP prosecation tbau on or about 18th Ju1y 1972, in Dodoma Rgion, the accused murdered one Tatu d/oMohamed. Tb'aèüthed has pleaded "Nbt guiltyto the charge. The evidence adduced by the prosecutn1$iIthat the villae of the accused and that of the farnly of ,thc 'deceased are near each other and are separated by a 4ryvalley V V V The family of 'the acdus'edand that of thb deceased each .VVOWni head of cattle. The cattle of theVwo families used to be grazed, together. The children of the..deceas'ed's fathé' (Pw.2) one of whom was the deceased, and the young brothers of the V accused, one of whom isJoseph Felix (P.6), ued'tb herd the at -6le in turn. V On 18th July, 1972 the deceased,. aged about "13 yea±'s, took her familiyts cattle to the accuseds village so tat 'oseph (Pw.6) cnild take over as it was Joeph's turn to herd the cattle that day. "1 After taking a meal "iith the ac.Vs.ed, 365 oih gent tO where the deceased had'the'at'tl'e and he took ov' frOm the decease. The deceaed' then left for her home It was then at abou± mid—day.. She was iever seen a]ive.• again. V .abou±' that time the accused also, left the i]Vlage. V As he did not tell anyone, no one Imew the acoused's destination, nor in what dir e c ti on he had gone. That evening, when the deceased failed to snow up at her home, the decased's father (Pw.2) started to loük for V her. When he did not find her at the accusd's village, he and the accused went looking for-the deceased throughout, -bhat night, but they did not find her. V ' - 2 - Early next morning, they heard an alarm. -On arrival at the scene they found the deceasedlyingdead - at., the bottom of a dry valley which separates-the village bf the accused that of the deceased. ... When many people gathered at the sconë thenoted that L the accused had blood stains on his clothes. -The accused was then interrogated by the elders ätth scene, and he admitted having kiledthè deceased; and added that he had done it because he was sent to do so -b-one.:iddi Jtma. The matter was then reported tc police. Police ôame and arrested the accused and took the dead body to Kondoa Government hospital. .: . ...... Dr. Charles (Pw.1) conductcd aizutopsy on-the b,ody , oft.o.,: deceased. He found that the deceased's face was grossly deformed with marks of violence, which included a laceration of the left frontal lobe of the bra1n ) fractureUft10 mandible hone lateral to the second left ipwer incisoI tOoth, fraOture ofthc maxilla bone lateral to the second uer incissor too±h tnd fracture of: the .lft side of the frontal bone of the sull extending to the left eye orbit There was a10 oding into the cranium, nose, and mouth In the doctor's opinion the cause -,cf death Of the deceased was shock du.e to.haomorrhage,, and laceration of the loft .fr.ontal lobe of the brain, :. Dr. Charles also examined the accused. Bo.found nomr.ks of violence on the acrused, and the physical condition of the accused was good. Mentally, however, the doctor formed the. opinion that the accused appeared to be of subnormal intelligence. .. . . On 22/7/72 the accused ws taken befor a justice of !the peace one Harold Mkone (Pw.4) and he made a voluntary.statetheit before the said jisticeof the peace. This stement, which..: is a confession, was not objected to and so was duly admitted as prosecutioa Exhibit C.. In. that statement the accused . confessed to killing the doceased, and addedtbatho did so .• because one Iddi Juma had told him to do so..atan, agrocd .. remuneration of sli.s. 200/— The accused irerit on tol!tho justico of the peace that after the killing her. hO :inform.od:the . said Iddi Juma ebout it and T.di Juc told the ccuscd to keep quiet about it so that he (Iddi Jua) could go rnd uekc away the breasts of the deceos,ed But before Iddi Juma could do so, the accused was arrested. - 3.. - -. Apparently, on the stpngth of the abbUed's stOry, one Iddi Juma - was arrested and he and the-accusodwere jointly charged. In the course of this trial, Iddi Jtima, who was the second accused, was discharged afto' the epub]ic entered a nolle prosequl in resct of him.. The t±ial then continued in respect of the accusid aloro. In his 1msvoin statewent, th? accused gave an account of the events 1eadin up to his arrest, buthe.'thade no' mention of .thatg killed the deceased, nor did he make any mention of having confessed to anyone - ht he . had killed the deceased, The defence caflod one Dr. Mziray (Dw.i')ef Isaiga Mtal Insitüti. Acording tothis..witness, ho sai th.o accused. two days after thd, accused was admitted to t}e Institution, and his preliminary obsôrvations,as shown on deOe exhibi4 A2 were that the accused was rational and relevant 'and admitted the killing. But he looked puzzled and depresda.' The doctor then decidd that the accused needed•:furthor obsorvtion, and was not fit to stand'trial. This was on:16thSoptombor 9 1974. The áccied remained in Isanga-Montal Lis±itu±ion for observation 'until 18th August, 1975, whOntho doctOr certified him fit to stand trial. In his written opinioh (defence exhibit M ): the:. doctor said that the accused had not' showr. any overt psychotic features apart from reactive depres$ion Ho added that from clinical observations and medical habkground, the accu accused"had no signs of insanity at the time be committed the act. The .doctor adod, however, that it was not normal for a person to kill another for two hundred shillings. He then opinpd that "the accsed is most likely to suffei from an abnormal jeron.l'ity (Psychopathy)". . In his evidence before this court, the dotor tied .to distinguish psychosis and neurosis in psychiatrie t'erms, but he agreed that subnormal intelligence as a result of psychosis, and insanity, which is neurosis, are not often easy to distinguish and that in practice the two are the same. : !fter summing up to the three genticmea asessors, they. were unanimously of the view that it is the ace used who killed. the deceased, and'that ho was sane end Imow what he*às doing at the time. They accordingly found h.imgp.ilty of murder as charged. , . .... As conceded by Lir. Ilbozi learned course] for the defence,, there can be no doubt at all that a i' l on as Tatu d/o Mohamed is dead, and that she died a violLnt death. 4 " From the nature of the injiies sust.iied by the deceased and from which she died, and all things being equel, malice "aforethoght on the, part: of the person iiio caused the death of the deceased would be inferable As 'rihtly point?d out' by lóarned Oounsel for the defence and AsI told. the genticimen assessors, the first ouestion to be resolved is who killed thb decéased There is evidence that the accused confessed to the elders at thq sone where A the body of the decsod:was found. Ho exprossly said that he was theperson who killed the deceased. Before justice of the peace, the accuscd ag'lln couEossed to kia- ths deceased 0 On the third occasion, he confessed to Dw.1 he;vii'ig committed the act. Besides, tht morning when'doceasod' s bod7 was found the accused's' clothes 'were seen to h..aVe blood st.irsand' his ekplanation then that it 'w.s blood 'frbth his wife wbo had menses - to ' was disproved by his own- wife who told: the elders, that she had a preancy of two months at the time. On the bdence as awholo 2 thorofore, Irospectfully agree with the 'tlemon assessors that theporE'on tho killed the doceaed is the accused, Andrea Joor'o Felix. The next quostionto which' I 'hou1d now address my mind is.whether ,' at th time the accused did the act, he was sane and so acted with malice aforethought. To start with, I ,w,ill.deal with the evidence of laymen, and this is the evidence of Angela d/o Nyasi (Pw.5), who is the wife of.,the accused and' V":o6luntar . ily gave evidence for the prosecution, and the evidence of Brun d/o Apol,inary (Pw.7) w.ho,is,the . mother ofth'e accused. Accordingto the evidence of Angela'; the accused lef.t at about midday and returned at about 5.p.rn. on the day dceaod disappeared. When the accused came back, -heappeared drunk =,d_-w'as singing old native songs. She further deposed tI-iat someticcs the accused was not mentally well He would sing to himself and as sometimes quar"clsomo. Briina told the court that when the accused was a-child, th,er& was a time when he fell unconscious for twodays,.. and was a' epileptic. Although he was sent to school, he oould: make no 'progre.,He was quarrelsome and used -to heat his friends. That is the evidence of ].a'ymen'. The evid once of Dr • Charles (Pw. 1) on this , point is that in his opinion, the accusedhäd mental depression and had subnormal intelligence. When asked by this court the defference-between subnormal intelligence and insanity Pw. 1 id - 5 - "Subnormal intelligence and insanity are often not easy to' distinguish." From the evidence of Dr. Mziray, one clearly gets the inpressioñ that the accused is not .a normal person. In L practical terms, rd 1hiè is 'the opinion of Dw.1 the'e is no diffor,ence between psychotic and neurotic people, although those terms ro capabic of Ui.stinction in theorctical psychiatry. For legal purposo, can find no r - son o difrentioc between the two when it: comes to thoi •'ffct . on the conduct .'iof a human being. In. his hook "Short Ei clopcdia of Ndicino f or Lawyers", Levitt defines psychoi. . as fbllows a disorder o±.thoight and behaviour.... due to djeasè oftho mind (alth.ou1i oftOn' • without demonsl.rsle organio disease) in which the patient has no insit into his mental state,: is . unable to care for himsf properly and may constitute a danger to '.others.." In the srne wort,.thO author defines n?urosis as:- "a behariour disorder ari..sing from iilJty to adapt tostr,es ancóflict. Characterised by anxiety whic1i.:.ho patient unconscioisIy seeks to.ationalise Or'i.ssi.patc by. .adopting defensive or other kinds of mental attitudes." The author makes he following distinction between neurosis and psychosis • • •. ... ttNerois is dithtinguished from psychosis by the fact that while neurosis conditiOned by environmental •caises, psychosis arises from disease of the mind itself" In the light of these medical authorities, an the evidence on record in this case, I can find no reason to diifferentiate the two terms for the practical purposes of determining the question of insanity in law. In each case the patient has a disorder of thought and behaviour, and in each the patie.nt mental stabilitythcrfoo, is disordered. That being so I feel that it would be wrong in law to try to diffrontiate those conditions in determining the question of ins .nit' in law. On the basis of the evidence on record, and in view of the authorities I have referred to, and with groat respect to the three gentlemen assessors, I am satisfied and find as a fact that at the time of doing the act, the accused was suffering from some disease of the mind which caused a disorder of thought and behaviour, and which rendered him incapable of imowing that he ought not to kill the deceesed. In other 'ids, I am satisfied that the accused was insane at the material time. -6 - For these reaons,' I hold that the accusedacted withou the n.ecessary malice aforethought to constit'ut: the offence of murder. I accordingly, hold that 1t'-i a'cused killed the deceased, but that by reason of his insanity he is not guilty o± murder. Und:er. 'section 168(1)(2).of the Crjmi1 Procedure.Code, I order that a cerffied copy., of those prbceedings be submitted to the Minist e r, and in the mearitine thoacusod shall be kep.t in custody as a crimil lunatic. ipeta Ag. Judge Judgment delivered in openz this 30th day of November 1976. B.D. hipeta Ag. 'Judge. Assessors thanked and • ••• ".D. 'Chipeta Ag. Judge. Mr.Mchora, State attorney for Republic Mr. Chambakare, holding bri.f for Tanzania Legal Corporation. 'I